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Creative Commons License Flaws Claimed 233

Posted by kdawson
from the gaming-the-commons dept.
bloosqr writes "Dan Heller, in a series of three articles, claims to have found a number of problems with the Creative Commons license, particularly within the realm of photography. In the first article he states there is a problem with people relicensing copyrighted work under the CC license and having subsequent users of that copyrighted work sued by the original owner. In the second article he fleshes out these ideas and states that there is an increased risk of being sued if you use a CC license. Finally, in the third article, he states that people can 'game the CC license' for profit, by suing people who use your CC'd work which you have subsequently revoked from the CC license. This series of blogs has generated a fair amount of discussion on several photography forums, and I would like for the Slashdot community to clarify matters."
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Creative Commons License Flaws Claimed

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  • by Improv (2467) <pgunn@dachte.org> on Tuesday January 08, 2008 @02:06PM (#21956846) Homepage Journal
    Which CC license is he talking about, and which of them actually permit revocation?
    • by Thansal (999464)
      I still fail to see the problem.

      Don't you have to first present the person that is infringing on your IP notice to stop before you can sue?
    • WANLBWPLOTV (Score:5, Insightful)

      by WED Fan (911325) <akahige.trashmail@net> on Tuesday January 08, 2008 @02:43PM (#21957474) Homepage Journal

      I would like for the Slashdot community to clarify matters.

      ??!!!??!!

      Do you actually think that the /. community contains anything but dangerous and specious interpretations of legal matters?

      What next?

      You're going to write to a Garden community to ask for medical advice?

      • Re: (Score:3, Insightful)

        by mu22le (766735)
        Asking for advices on Slashdot is just like asking an infinite number of monkeys.
        • Re: (Score:3, Insightful)

          by rtb61 (674572)
          So who stole your bananas and left you so cranky. You know what, as you post, so you are =\.

          First rule of civil suit, who has the most money and the best lawyers wins. Once you have put something on creative commons you can't take it back, you have initiated what is in effect an open contract and would have to get every one on the planet to agree with the alteration of contract, however that certainly doesn't stop you from getting some greedy ass hat lawyer to take the case and bleed you dry trying to win

        • Re: (Score:3, Funny)

          by bursch-X (458146)
          And neither has come up with anything even remotely resembling Shakepeare's work.
    • Re: (Score:3, Informative)

      by SharpFang (651121)
      none, but with no registration process there's no proof the work was ever under CC.

      1. People ILLEGALLY claim copyrighted works (by others) are CC, and other people who use them in good faith find themselves violating copyright.

      2. People ILLEGALLY remove CC from their works, but the burden of proof that the work was ever CC is on whoever made the derivative works or copies.

      "1" is "man in the middle attack", "claim it's yours and it's CC"
      "2" is "bait and switch", "I'd swear it was still CC yesterday!"
  • by autophile (640621) on Tuesday January 08, 2008 @02:07PM (#21956864)

    ...there is a problem with people relicensing copyrighted work under the CC license and having subsequent users of that copyrighted work sued by the original owner

    First, how often does that really happen?

    Second, why is this a problem with CC? It would be a problem with anyone placing a copyrighted work under any license, or even claiming copyright on a work copyrighted by someone else. It's more a problem with copyright and the legal system.

    --Rob

    • The catch with CC (Score:5, Interesting)

      by sterno (16320) on Tuesday January 08, 2008 @02:52PM (#21957654) Homepage
      Broadly speaking CC works well, but with photography, it's a particularly thorny issue because there's a lot more complexity in how copyright and other legal issues work with a photo. The problem you tend to run into with CC is that people use it pretty liberally without thinking about the consequences of it. The vast majority of people generating all this media under a CC license don't really understand all the ramifications of it. A case that recently came up was that somebody took a photo of a kid, and then that photo was picked up by a company that used it for commercial purposes. The child's parent never signed a release for the photo.

      Now, this isn't a problem with CC per se, but people will often license content under CC without realizing that, technically they may not have all the rights to do what they are doing. When I take photos, I put them on Flickr under a CC license but I use the no commercial use clause. This simplifies matters because, given that it's not for money, there's far less implications for somebody using my images.

      Now why is this different from using the default copyright license? Because in that case, the areas that tend to get you into trouble are not permitted by default. If you go to my site and take a copyrighted image and use it commercially, you've clearly broken the law. If you go and take my CC licensed image, you're okay with me, but it doesn't mean I was okay in the first place. Nobody's likely to sue you for just showing an image on your Flickr account, but it's very different when you're talking about using an image in marketing materials, etc.

      • Re: (Score:3, Insightful)

        by bhsx (458600)

        When I take photos, I put them on Flickr under a CC license but I use the no commercial use clause. This simplifies matters because, given that it's not for money, there's far less implications for somebody using my images.

        So what happens when Google Images shows your Flickr pics as search results with ads on the page? That's commercial use isn't it? I didn't read this article, but I read (what I think is) the first part that brought this up. What defines commercial use? What if Johnson & Johnson put your picture on a free brochure about baby shampoo? What if the same company used it for a free AIDS test brochure? What if a non-profit used it for the same brochure? What's commercial use?

        • by sterno (16320)
          In the end, it all comes down to a simple rule of thumb: it all depends on what somebody is willing to sue over. I mean at the end of the day copyright is a pretty ephemeral concept. Is google indexing my image commercial use? Probably not, but I could certainly try to sue them and find out (though I expect the court would rule against me).

          If Johnson and Johnson used it as part of a free brochure I might still be able to sue because it's clearly a promotional item for them which has some tangible monetar
      • Re: (Score:3, Informative)

        by AaronStJ (182845)

        A case that recently came up was that somebody took a photo of a kid, and then that photo was picked up by a company that used it for commercial purposes. The child's parent never signed a release for the photo.

        Now, this isn't a problem with CC per se, but people will often license content under CC without realizing that, technically they may not have all the rights to do what they are doing.

        This isn't a problem with the CC at all, or even with the photographer. The photographer in the case you mention [slashdot.org] had

        • By releasing the photo under CC, the photographer is only addressing the copyright of the photo, not other issues such as the need for a model release. Further, it is the publisher of an image (in this case, Virgin Mobile) who is responsible for making sure there is a model release.

          Isn't the photographer a publisher when he (or she) posts the photograph on flicker and makes it public? If so, wouldn't the photographer need to secure a model release prior to posting the photograph? Wouldn't the photographer

        • by muridae (966931)

          This isn't a problem with the CC at all, or even with the photographer. The photographer in the case you mention [slashdot.org] had every right to post the photo under any license he wanted to, including a Creative Commons license without the "No Commercial Use" tag, or heck, even public domain. By releasing the photo under CC, the photographer is only addressing the copyright of the photo, not other issues such as the need for a model release [wikipedia.org]. Further, it is the publisher of an image (in this case, Virgin Mobile) who is responsible for making sure there is a model release. Again, this has nothing to do with copyright. The copyright on an image may be free and clear, even with no model relase in place. And as the sole creator of the image, the photographer is free to license the image under any license he or she wants, regardless of the existence of a model release or really any other legal complication for publishing the photo that may exist. The photographer is simply saying it's ok to use the photo commercially from a copyright point of view

          Yes, it is a problem with the photographer. A license to use a work implies that the person licensing it has the authority to do so.* While it would be nice to blame the 'Big Corporation' for this, and they do bare some responsibility, it is not just their fault. The photographer, in putting the picture up for possible commercial use, implied that they were authorized to release it that way.

          The best case I could see is that "Big Corp" agrees not to sue the photographer if family agrees not to sue "Big Cor

      • Broadly speaking CC works well, but with photography, it's a particularly thorny issue because there's a lot more complexity in how copyright and other legal issues work with a photo.

        IN THE US. It is worth remembering that there are an awful lot more people not subject to the strange photo copyright rules of the US than are. I understood that CC, like the GPL, was supposed to be a worldwide license, not just a US based one.
      • by autophile (640621)

        Now, this isn't a problem with CC per se, but people will often license content under CC without realizing that, technically they may not have all the rights to do what they are doing.

        I still don't understand that. The same problem applies to ordinary copyright. People can claim copyright over pictures of kids when a release was not obtained from the parent.

        The argument you seem to be making is that users of CC are more stupid than users of plain old copyright. That's not an argument against CC. That's

      • A case that recently came up was that somebody took a photo of a kid, and then that photo was picked up by a company that used it for commercial purposes. The child's parent never signed a release for the photo.

        Now, this isn't a problem with CC per se, but people will often license content under CC without realizing that, technically they may not have all the rights to do what they are doing.


        Your example has nothing to do with such a situation. I don't need to obtain a model release when I take a picture.
      • The specific example [flickr.com] was an Australian ad agency using a photo from flickr under a CC license, without getting proper model release. The CC FAQ explains [creativecommons.org] that a model release is also needed. Even without the explanation, the Australian ad agency certainly ought to know about any rules about model release that may apply in Australia.

        Unfortunately, someone very early in the discussion on Flick (after kid discovered her photo was used in Australia) mentioned that another model had got US$ 100.000 in compensa
    • It's not a matter of relicensing a copyrighted work. All works are copyright until they are explicitly placed into, or statutorily pass into the public domain. Licenses don't apply to public domain works since no license is ever required for something in the public domain.

      A Creative Commons license can only be applied, therefore to a copyrighted work. Further, the license does not waive the copyright or place the work into the public domain. The copyright is fully intact.

      His argument that you can game the l
      • by Sancho (17056)

        His argument that you can game the license by licensing the work, then revoking the license doesn't hold either. Once the work has been licensed under Creative Commons, the license is good indefinitely so long as its terms are met. You could decide to license the work under other terms later, of course, but the Creative Commons license would persist (you can't alter the terms after the terms are agreed upon and accepted by both parties). In the case of most of the licenses, you couldn't effectively terminate the licenses either. Once you've given permission for others to distribute a work under the same license terms, you've effectively passed on the authority to license the work under those terms. Even if you don't want to distribute the work under a CC license anymore, you've already granted the right for others to do so and can't revoke that right until they violate the terms of the license.

        Of course, how do you prove that the work was ever CC? Print out the web-page proving it? It can be faked.

        Again, though, this isn't a problem specifically with CC licenses. It's a general problem with trying to apply contract law in this manner--where the parties never actually form an agreement and sign it.

  • by eldavojohn (898314) * <eldavojohn&gmail,com> on Tuesday January 08, 2008 @02:08PM (#21956888) Journal
    Well, I'm familiar with criticism of the creative commons license [wikipedia.org] from people like Dvorak or Debian [wikipedia.org] but there's something here that is confusing to me. The idea that you can un-creative commons something is ... not right.

    Finally, in the third article, he states that people can 'game the CC license' for profit, by suing people who use your CC'd work which you have subsequently revoked from the CC license.
    I haven't read the article, but sounds just wrong to me.

    You know, I thought that if you license it as creative commons then all derivative works and the like from that work must also be CC ... although I think I am wrong about that last part, I am so used to and in love with the GPL that it's just how I think.

    Well, from the faq [creativecommons.org]:

    What if I change my mind?

    Creative Commons licenses are non-revocable. This means that you cannot stop someone, who has obtained your work under a Creative Commons license, from using the work according to that license. You can stop distributing your work under a Creative Commons license at any time you wish; but this will not withdraw any copies of your work that already exist under a Creative Commons license from circulation, be they verbatim copies, copies included in collective works and/or adaptations of your work. So you need to think carefully when choosing a Creative Commons license to make sure that you are happy for people to be using your work consistent with the terms of the license, even if you later stop distributing your work.
    So seriously, you may well be right with the first two issues but this third concept is foreign to me and I'm sure many lawyers would be interested in how you 'revoked?' a license. What the?

    I think a lot of these issues would be resolved by making it "no backsies, all derivatives must be CC, tough if you want to use them no lawsuits plz k thanx bye." And that's the best legalese I know.
    • Re: (Score:2, Informative)

      by Anonymous Coward
      You probably should have read the article then. The author specifically addresses that issue. =)

      The general (erroneous) belief is that once you assign a photo a CC-license, it is permanent--that you cannot revoke the CC. Well, that's not precisely true. To explain, let's start with what's on the FAQ on the Creative Commons website:

      Creative Commons licenses are non-revocable. This means that you cannot stop someone, who has obtained your work under a Creative Commons license, fro

      • by Kjella (173770) on Tuesday January 08, 2008 @02:51PM (#21957632) Homepage
        The author is an idiot. Assuming the original release was legit, whereever you get the CC'd image has permission to redistribute it under CC, and that's the end of it. This would only apply if someone later got it directly from the photographer WITHOUT any license attached and no sane person would use it commercially without one. If you're highly misleading about it, estoppel would apply anyway.
    • Nobody in their right mind would trust a license that can be terminated arbitrarily. One day you could be legal, and the next not, without your doing anything wrong. That's why none of the Open Source licenses are allowed to do that.

      So, I am very dubious that CC licenses can terminate.

      Bruce

      • Re: (Score:3, Insightful)

        by Bruce Perens (3872) *
        Actually, Heller is not saying that CC licenses can terminate. He's saying that you can't trust someone who uploaded a pictrue to flickr to be an actual copyright holder. And they can be a legal minor. I suppose we could fix this with digital signature and certification, if it was that important. Right now we just expect commercial users to employ due diligence, and they don't.

        The other problem is the issue of model release, and I agree that a lot of people who CC license their work don't know about that.

        • by andphi (899406)
          Just to prove your point for you: I'm someone who uses CC licenses on his written work (all of it in progress and none of it widely published) and I'd like to what know model release is.
          • Re:No Termination (Score:4, Informative)

            by Bruce Perens (3872) * <bruce@perens.com> on Tuesday January 08, 2008 @03:15PM (#21958100) Homepage Journal
            When you take someone's picture to use commercially, they have a right to be paid. Model release is how they sign away that right. This may also apply to inanimate objects in some cases. There are many venues that post that commercial use of photographs is prohibited without permission. And you can take a photo of someone else's copyrighted work, which would make your photo an unlicensed derived work.

            I do more work in software, so am not the best one to explain this, although I'm sure there are legal guides for photographers.

            Bruce

            • Re: (Score:3, Interesting)

              by mister_tim (653773)

              Actually, there is no automatic assumption that a model needs to be paid if their image will be used commercially*. The purpose of a model release is not about the model's right to compensation, but about ensuring that they don't dispute the purpose of the photo, i.e. that they consent that their photo be used in a commercial application. There's also the trade practices laws concept of 'passing off' [wikipedia.org] - basically, if you use a particular person's photo in an advertisement for a product, it is implied in law

        • The other problem is the issue of model release, and I agree that a lot of people who CC license their work don't know about that.

          They don't have to know about that, unless they're publishers as well. Heller himself will tell you [danheller.com] that the responsibility of obtaining a release rests with the publisher of a photograph, not with the photographer:

          It may surprise you to know that the photographer isn't ultimately culpable for images that are published without a release. It's the publisher of an image that carri

      • by fbjon (692006)
        The licence indeed states that it is non-revocable. However, the license can obviously be changed by the owner, meaning all new users will fall under another license. At this point, TFA claims that the old users (defendants in a prospective evil lawsuit) will now have the burden of proof that they obtained the image under a Free license, and that this burden will likely prove too heavy for most to bear.
        • At this point, TFA claims that the old users (defendants in a prospective evil lawsuit) will now have the burden of proof that they obtained the image under a Free license, and that this burden will likely prove too heavy for most to bear.

          The original copyright holder would have to perjure himself when asked if the material had ever been available under that license. And could have to go to jail if found out.

          There are many ways to prevail in an injust civil case if you are willing to risk criminal prosecut

      • Re: (Score:3, Interesting)

        by DragonWriter (970822)

        Nobody in their right mind would trust a license that can be terminated arbitrarily. One day you could be legal, and the next not, without your doing anything wrong. That's why none of the Open Source licenses are allowed to do that.

        A lincensor who grants a gratuitous licens (not just the CC, but the GPL and other OSS licenses) can do that (at least in US law) whether or not the license terms say they won't or can't. At most, such a representation may have a bearing on whether the ability of the licensor to

        • I think under 203(a)(3), you might have to wait 35 years to do that :-)
          • I think under 203(a)(3), you might have to wait 35 years to do that :-)


            The Section 203 termination option is a different, copyright-specific provision that applies whether or not the license was gratuitous. My original post was about a rule which applies to gratuitous licenses in general (including gratuitous copyright licenses), not the Section 203 option.
    • by Bazman (4849) on Tuesday January 08, 2008 @02:41PM (#21957444) Journal
      Here's his make-money-fast scheme:

      1. Register your images with the Copyright Office (think this is a US thing)
      2. Stick your images on a web site with something like a CC-attribution license.
      3. Wait for people to use your images.
      4. Remove your images from the web site.
      5. Pretend they were never CC-licensed.
      6. The old 'switcheroo'. Produce a commercial license and a nice payment chart.
      7. Sue users.

        The problem is that the burden of proof is on the users to show they got it legally, and if you wipe all traces of your CC licensing from the internet then they can't prove it, and you win. So, he concludes, people shouldn't use other people's CC-licensed images because you can't trust them to not commit what looks to me like fraud.

        It's not a problem if you pay for an image because then you have a paper trail for the payment, and maybe even a written, signed license. I guess if you get a signed CC license from the supplier then that's one way out of this.

        His other argument is that CC-licensed photos might have images of people who haven't given permission for certain usages of their image. In copyright-speak that's 'provided a model release'. He gives a concrete example of where this actually happened. So, he concludes, don't use other people's CC-licensed images unless you've sorted out model clearance. But even then, you've got the switcheroo problem I've just outlined.

        Not sure why he takes a few thousand words and half a dozen blog posts to explain all that, but there ya go.

      Barry

      IANALBIDOOARHCLB
        [I am not a lawyer but I dated one once and read her contract law books]
      • Re: (Score:3, Interesting)

        by Raindance (680694) *
        I think you're right, that this is the problem / "get rich quick scheme" he's trying to get at.

        The problem being, it just wouldn't work. There are enough logs of what goes on on the internet that anyone trying this would get tripped up (the existence of archive.org alone would be a death-knell for this strategy... same with the Google cache).

        I think this fellow has some valid thoughts, particularly about model releases, and then he has some confused thoughts. It's kind of a shame to have these confused thou
        • by corsec67 (627446)
          Your site is much less likely to get indexed if you do an exclude all in your robots.txt.
          But then how would people find the images to rip them off?

          As for CC versus the model release: the license of the photo has nothing to do with the model release. You need a model release if the picture is used commercially, regardless of the license on the photo itself.
          • by Raindance (680694) *
            Right, on both counts.

            I think the model release problem is relevant, if only because Creative Commons was sued over it earlier this year. It was (IMO) a meritless case, which was later dropped-- not CC's fault at all, as you say-- but it was a sign that many people probably don't get the license/release distinction. It's not CC's obligation to make that clearer, but Lessig has stated they'll try harder at it.
      • by mhall119 (1035984)
        Interesting, and with implications beyond CC licenses as well. Suppose I create a small application, license it under the GPL, and distribute it from my own website. Then, some company starts to use and re-distribute it, following the GPL. Next I scrub my site and my code of all references to the GPL, and claim it was never licensed as such. Wouldn't this cause a very similar situation?
      • Re: (Score:3, Insightful)

        by vux984 (928602)
        His other argument is that CC-licensed photos might have images of people who haven't given permission for certain usages of their image. In copyright-speak that's 'provided a model release'.

        How is that not a risk with non-CC licensed photos? I mean, that seems to be a general risk. Period.
        At best, CC images, should be available in packages with copies of the model releases included. This is how the major stockphotog sites handle it. You must upload an image including the releases.

        But even then, you've got
      • by risk one (1013529)

        Okay, so two points...

        If you're going to print pictures with people in them, especially on a large scale, make sure you know about model releases. Any company that hires lawyers knows about this, and I seriously doubt that they'd let anything slip through the cracks. Any company that doesn't have lawyers working for them would surely not print on such a great scale that huge amounts of damages could be claimed. In any case the legal history of cases based on granted copyright without model releases should

      • The problem is that the burden of proof is on the users to show they got it legally, and if you wipe all traces of your CC licensing from the internet then they can't prove it, and you win.

        One solution is to provide a digitally signed license with (or perhaps even embedded in) the image file, so anyone who uses the image can prove the license even after all traces have been removed from the internet.

      • Re: (Score:3, Interesting)

        by pbhj (607776)
        >>> It's not a problem if you pay for an image because then you have a paper trail for the payment, and maybe even a written, signed license. I guess if you get a signed CC license from the supplier then that's one way out of this.

        Wouldn't an email from the supplier of the CC-ed material be sufficient to shift the burden of proof?

        If they said you forged the email then without proof you could countersue for slander too.

        I often consider cc-by-sa images, there are lots on flickr. Flickr, and the licen
    • IANAL, but revocation probably happens because it could be considered "unconscionable" to not be able to revoke a license in certain cases, and if a clause is considered unconscionable and that clause isn't severable from the rest of the contract, then the whole contract could potentially fall apart.
      • by bloobloo (957543)
        The CC licences are not contracts. The photographer does not receive any consideration from the user. A contract must contain an offer, an acceptance, and an exchange of considerations.
        • Ahem, from the Creative Commons license:

          "By exercising any rights to the work provided here, you accept and agree to be bound by the terms of this license. To the extent this license may be considered to be a contract, the licensor grants you the rights contained here in consideration of your acceptance of such terms and conditions."
    • The idea that you can un-creative commons something is ... not right.

      At least in US law, a license that is not supported by payment or other consideration (i.e., one that is not a contract) is revocable at will by the person issuing the license, whether or not the license purports to be irrevocable (you could probably make an argument that a sublicense required to be irrevocable as a condition of the original license is irrevocable by the sublicensor, but still subject to revocation by the original licensor

  • I am not so sure that this is so much an isuee of Creative Commons, as it is the gray void that is relicensing. You should only be applying the CC to your own work and if you are applying the CC to something else, then you should responsible for the fallout, especially if the license is incompatible with the original.
    • by tjstork (137384) <todd.bandrowsky@nOsPAm.gmail.com> on Tuesday January 08, 2008 @02:16PM (#21957044) Homepage Journal
      I am not so sure that this is so much an isuee of Creative Commons, as it is the gray void that is relicensing. You should only be applying the CC to your own work and if you are applying the CC to something else, then you should responsible for the fallout, especially if the license is incompatible with the original.

      I think the gist of the article is thus:

      Owner A has photo
      B releases A under CC to X,Y,Z
      A sues X,Y,Z, but really B is to blame.

      The game is that, I could take one of my friend's photos, and put it up on the likes of Wikipedia. Then, my friend turns around and sues Wikipedia for infringement. In other words, the claim is that the license somehow makes it possible to "game the system", but, as you already pointed out, I don't see how that isn't possible with any license.
      • by nahdude812 (88157) *
        And X, Y, and Z turn around and sue B for misrepresenting the image to begin with. But like you said, this problem is not a Creative Commons problem, it's problem endemic to copyright which Creative Commons inherits because it is a license under copyright law.
      • by ScentCone (795499)
        Owner A has photo
        B releases A under CC to X,Y,Z
        A sues X,Y,Z, but really B is to blame.


        No, the real problem is that when A releases an image under CC, and neglects to register the work with the copright office (as the overwhelming, vast majority of people do), he has no recourse at all, in any meaningful form, against the mis-users of the image, no matter who he pursues (B, X, Y, or Z). In practical terms, A's use of the CC is a statement that there will be no monetary licensing costs. That establishes
        • by cfulmer (3166)

          A's use of the CC is a statement that there will be no monetary licensing costs.


          There will be no monetary costs for using the work under the terms of the license. But, if you fall outside the license, things become murkier. After all, if you say "no commercial use," for example, it's because you want them to come back to you and pay for that commercial use. Same thing for the attribution clause.
          • by ScentCone (795499)
            There will be no monetary costs for using the work under the terms of the license. But, if you fall outside the license, things become murkier. After all, if you say "no commercial use," for example, it's because you want them to come back to you and pay for that commercial use. Same thing for the attribution clause.

            But one of Heller's points is that someone can, essentially, use the image (even for profit!) outside of the bounds of that CC license (to which they didn't even agree, obviously) with essent
            • by cfulmer (3166)
              Sure, without registration, you can only get actual damages & attorney's fees. But, if you haven't registered, you can still get actual damages. The fact that you're allowing some uses for free does not imply that you'd allow all uses. Stephen Colbert, for example, allowed viewers to create derivative works in his "green screen challenge," but would have been able to collect decent damages if his video had been used in a commercial, even if it was never registered.

              Plus, if you register and they infri
              • by ScentCone (795499)
                The fact that you're allowing some uses for free does not imply that you'd allow all uses.

                But the vast, giant majority of people who post on sites like flickr and robotically check the CC box do NOT have an established, articulated mechanism for charging for their work in a commercial setting. Lawyers can really make hay out of the fact that your first-ever suit for damages happens to be in regards to the first time you ever would have charged for such work in your life. And that's most amateurs, and tha
                • by cfulmer (3166)
                  Except that in such cases, courts typically use an objective standard ("what would a reasonable license fee for this picture have been"), not a subjective standard ("what would this particular plaintiff have charged this particular defendant?") So, you find similar pictures and uses in a commercial setting and use that fee. Heck, if the company using the picture has licensed pictures before, it's even easier -- just see how much they normally pay.

                  Turn Heller's argument around: let's say that you're a com
                  • by ScentCone (795499)
                    Turn Heller's argument around: let's say that you're a commercial photographer who has licensed hundreds of pictures at $1,000 each. Now, I come along as a novice, grab your picture and put it on my website. Do I owe you $1,000? Under Heller's argument, I should be able to say "But, I've never licensed a picture before. I never would have paid $1,000. This is my first-ever suit for damages and happens to be in regard to the first time I ever would have paid for such a work in my life. I never would have pai
                    • by cfulmer (3166)
                      Exactly -- I was trying to point out the fallacy in Heller's view by turning it around. Similarly, if you're, say an ad agency and come across a very nice picture which you would normally pay a thousand dollars for, would you reasonably expect to use it for free?

                      Like I said, damages are based on a reasonable market price and do not depend on either party having paid or been paid before. But, if one party has bought or sold similar pictures in the open market, those earlier transactions are excellent evide
                    • by ScentCone (795499)
                      But, if one party has bought or sold similar pictures in the open market, those earlier transactions are excellent evidence of that reasonable market price.

                      Much of Heller's audience are the legions of never-sold-an-image-ever amateurs with $10,000 worth of expensive DSLR, professional quality lenses and other tools who are just having fun making images. They share them on places like flickr, and don't think through this stuff at all, let alone have any economic base line established for the value of thei
        • by fmobus (831767)
          oooh shuddup! It is not mandatory to have the work registered before the infringement. You are only required to register before actually filing the suit (i.e. possibly before the infringement itself). Registering will also give allow you to sue for statutory damages, as opposed to only actual damages. Handy faq.
  • This series of blogs has generated a fair amount of discussion on several photography forums, and I would like for the Slashdot community to clarify matters."

    The only thing I see the slashdot community making clear is the maximum opacity of the muck it will be necessary to wade through before we are able to define the issues.
  • ummmm (Score:5, Insightful)

    by demonbug (309515) on Tuesday January 08, 2008 @02:12PM (#21956958) Journal
    "...and I would like for the Slashdot community to clarify matters."


    I LOL'd.

  • Reliance (Score:4, Interesting)

    by Russ Nelson (33911) <slashdot@russnelson.com> on Tuesday January 08, 2008 @02:15PM (#21957030) Homepage
    If you encourage people to use your work, and then try to pull the rug out from them by revoking their license, you can sue them for "reliance". Judges don't like that business model.
  • by homer_ca (144738) on Tuesday January 08, 2008 @02:22PM (#21957146)
    There's a whole other issue with photos and videos separate from copyright: getting a model release from the people shown in the picture. See this earlier case of Virgin Mobile Australia using a CC licensed photo off Flickr in an ad campaign.

    http://yro.slashdot.org/article.pl?sid=07/09/22/0319252 [slashdot.org]
    • by Dogtanian (588974)

      There's a whole other issue with photos and videos separate from copyright: getting a model release from the people shown in the picture. See this earlier case of Virgin Mobile Australia using a CC licensed photo off Flickr in an ad campaign.

      Thank God at least one person didn't let this misleading bit through without criticism. Heller says that

      Here's another example: Virgin Mobile used a photo from a Flickr user who used the Creative Commons license, but the company forgot to check for a model release for the person in the photo. They got whacked for a hefty settlement, even though the photo itself was not the source of the problem. True CC licensing had nothing to do with that, but businesses don't think beyond the simple direct correlation, so the bad apple spoiled the barrel.

      Yes, but that's still not a problem with the CC itself.

      I already discussed why I considered Virgin (or their agency) to be negligent in that case [slashdot.org] in the same thread. An advertising agency are a group of professionals whose jobs revolve around this type of thing. Even someone with a passing knowledge of the area would not assume that the CC license grants a model release. Actually, it's reasonable to a

  • by jdgeorge (18767) on Tuesday January 08, 2008 @02:26PM (#21957210)
    As far as I can tell, DHINAL (Dan Heller is not a lawyer). Why would I worry about his opinions, rather than the well informed opinion of Lawrence Lessig [lessig.org], the law professor who actually founded the Creative Commons, and uses the licenses extensively?
    • by ScentCone (795499)
      As far as I can tell, DHINAL (Dan Heller is not a lawyer). Why would I worry about his opinions, rather than the well informed opinion of Lawrence Lessig, the law professor who actually founded the Creative Commons, and uses the licenses extensively?

      Are you a lawyer? Then why should we care about your opinion about whether or not someone else has presented legally useful information?

      Regardless... Heller's perspective is that of an artist and technician that produces work for a living. You have no obli
      • by jdgeorge (18767)
        Thank you, that is a fair answer.

        If I read the response right, it's not that Dan Heller has anything new to bring to the discussion, but that many folks might listen to him because he's an "artist" rather than a (by definition boring) lawyer (who also produces work for a living and uses CC licenses extensively). Since Lessig has generally covered these issues before, Dan Heller doesn't bring any new information to the table; rather, he tries to provide a wake up call to the folks who aren't interested in pa
        • by ScentCone (795499)
          The bottom line is that I would not want ANYONE to get legal advice from a photographer/"artist" instead of a lawyer with expertise in the area of interest.

          Sure, just like you wouldn't usually ask a lawyer to help spec out a studio lighting system. But if you follow Heller, you'll see that he usually (to boil it down) says things like this: "So, there's a list of 100 factual things you ought to know about copyright, your business plan, and liability insurance. Now, go talk to your lawyer, your accountant
          • by jdgeorge (18767)
            And he's not really any different on this topic - he's just pointing out a gigantic, gaping hole into which many passionate amateur or small-time photographers seem to be continually stepping. Good for him.

            True enough. I do hope he succeeds in helping some people avoid or understand copyright-related problems. Good luck to him.
      • by Altus (1034)
        when you choose to provide your photograph to people under the CC license, you are explicitly saying that you consider it to have no monetary value.

        This is the part I have trouble understanding (im certainly no expert, so maybe you can explain this to me). Lets say I take a picture and release it under a CC license that lets people use it for free for non commercial purposes Then SlimeCo come along and starts using my picture on the cover of their new product. Clearly this is a commercial use and would b
  • by doti (966971) on Tuesday January 08, 2008 @02:36PM (#21957364) Homepage
    Welcome to the digital age, where information is free to be copied everywhere, without loss of the original.
    And that applies to anything that can be put in digital form: text, software, images, sound, video, and photography.

    If you don't want your precious piece of information to be used by others, then just don't put it available to the public. Period.

    The very term "intellectual property" doesn't make sense.
    • by PhxBlue (562201)

      If you don't want your precious piece of information to be used by others, then just don't put it available to the public. Period.

      How asinine. I'm glad artists and writers and photographers and musicians don't actually feel this way, because it would make the U.S. a pretty damned depressing place to live. There's also the small matter of how you'd get your news stories, which are also protected by copyright.

  • by TheSHAD0W (258774) on Tuesday January 08, 2008 @02:49PM (#21957566) Homepage
    I don't understand why the Creative Commons license is being singled out as vulnerable to this sort of problem. Anyone, anywhere, could buy content from one entity who claims to have a copyright on it, then get hit with a lawsuit by another entity who disputes the copyright. Creative Commons is no more and no less subject to the problem.
  • by east coast (590680) on Tuesday January 08, 2008 @02:53PM (#21957674)
    From the blurb: I would like for the Slashdot community to clarify matters.

    Yeah, and people in hell want iced water.

    Seriously? This is not the place to look for anything substantial. Most Slashdotters are not lawyers (myself included). Few know the actual law and even less are able to separate the standing law from their Utopian ideals. Slashdot makes Wikipedia look like an absolute braintrust in comparison.

    And that's not to say that people shouldn't express themselves. Not at all. What it is to say is that if you're looking for the solid leggings of today's law this simply isn't the right place to look. Tons of posters have all kinds of good ideas and good intentions but that's not going to get you anywhere if you find yourself standing in front of a judge. There is a lot of talk on Slashdot about change in the laws involving IP but so far I haven't seen anything aside from talk. From time to time I like to call one of the more vocal anti-IP talkers out and tell them why don't they openly break the law and let me know how their reasoning works out in court. I have yet to find anyone who takes up this challenge. Regardless of where we stand on IP law, we all know the basic truth behind it and all the intellectual masturbation that goes on around here doesn't amount to a hill of beans in the face of the reality of the situation.

    And to be very honest, most of the ideals that people spread around involving the lessening or even revoking of IP laws simply can't stand up in our society. We have far too much riding on this structure and drastic changes to that structure are going to cause wide spread hardship. I don't think that today's society is built out of the kind of people who are willing to bear hardship for any real length of time to right the wrongs of yesteryear.

    It's going to be both a sad and comic day if most of the changes that people suggest and support around here ever come into being. If we want serious change that isn't going to leave itself open to short term corruption we're all going to have to take a loss. Most people here don't care about loss until it's their loss that we're talking about. The revolution will not be on Slashdot.
  • So, there are some risks with using CC licenses:

    (1) the fact that something claims to be licensed under creative commons doesn't mean that it actually is. I can't slap a CC license on your picture and re-use it.
    (2) some states have a "right to publicity," which means that if you're going to make a commercial use of my picture, you have to get a release from me. CC licenses do not come with such releases.

    His third article is partly exercise in fiction -- he takes the view that a CC license is personal to
  • Good question (Score:3, Interesting)

    by Spazmania (174582) on Tuesday January 08, 2008 @02:59PM (#21957780) Homepage
    Dan Heller poses a great question. After describing a situation where only 2 of 500 polled students thought downloading a copyrighted work was wrong, he asks:

    What do we do about a society that is already predisposed to ignoring copyright in the first place?

    The answer is simply this: where the law fails to reflect the will of the people it is the law, not the people, which is in error.
    • by quanticle (843097)

      I cannot agree with that. If the law is always updated to reflect the will of the people, then all you have is mob rule. The rights of the minority must be protected, even if the minority is currently unpopular. And yes, I do believe that the right to get paid for your labor is a fundamental right.

      • by Spazmania (174582)
        The rights of the minority must be protected, even if the minority is currently unpopular.

        By that logic, murder must be acceptable because a minority (namely murderers) want their right to kill protected.

        Your basic premise is correct: a majority must not be able to abuse a minority merely because they have the votes. However, the minority should rarely have the right to compel the behavior of the majority and then only with excruciatingly careful attention to fairness. Modern intellectual property law got i
    • And if you asked the same question of 500 photographers, novelists, poets, and composers? Do you think that, perhaps, the answer might be different? Which people are to be protected by the law?
  • by emkman (467368)

    I would like for the Slashdot community to clarify matters.
    Sure, I can give you my expert legal opinion as soon as I get back from getting medical advice from my butcher and some advice on my love life from my carpenter.
  • The core point of his first article seems to be: whenever you use a CC-licensed photo, you cannot be sure that it was actually CC-licensed by the true copyright holder; maybe a kid stole it from some website and uploaded it to Flickr under CC.

    That's a valid concern. Except it applies to all licensing, not just to CC.

    Why would the kid upload it to Flickr under CC? Wouldn't it make much more sense to sell the stolen photo to a stock photo agency, claiming that he owns the copyright and that all model rel

  • He agonizes about the possibility that someone might get sued for using a CC-licensed photo.

    He is curiously unaware, or oblivious to the possibility, that the New York Times' lawyers may want to chat with him about his copy-and-paste [danheller.com] of an article from last year's NYT Valentine's day drivel [nytimes.com].

    Dan, just because it's on the net doesn't mean you have the right to use it!

  • I don't think the real issue here is specifically CC. I'm reminded of Ze Frank's Anti-Intellectualism [zefrank.com] song. It's a lot of song and dance pointing attention to one thing to distract you from the real issue.

    The real issue is this. We, the unwashed masses, outnumber you, the professionals. For every one of you, there's a thousand of us. We have cheap digital SLR's, digital videocams, music producing software, editing suites... We can generate a hundred thousand times the volume you can, and even if 0.01% of

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